State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 105617 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

RUPERT ANDREWS,

Appellant.

________________________________

Calendar Date: February 11, 2015

Before: Peters, P.J., Garry, Rose and Lynch, JJ.

__________

Ralph Cherchian, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter

Willis of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (Milano, J.),

rendered September 20, 2012 in Schenectady County, upon a verdict

convicting defendant of the crimes of attempted assault in the

first degree and gang assault in the first degree.

In September 2011, two individuals confronted defendant at

a deli. A third individual, the victim in this case, availed

himself of defendant's cash, marihuana and cell phone, which were

strewn onto the floor during an ensuing altercation. Afterwards,

defendant followed the victim from the deli, the two exchanged

words and, as the victim walked away, he overheard defendant

telephone a request that someone "go get the mag," which the

victim believed to mean a gun. Later that evening, the victim

returned to the deli and observed defendant and two other men
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watching him from a nearby apartment window. The victim saw the

light in the window go out and, moments later, saw defendant,

whom the victim described as "charged," and three other

individuals come out to the street. The men surrounded the

victim, who began fist fighting with defendant. Gun shots rang

out and a group of individuals, including the victim, ran away

from the site of this first altercation. Defendant and the

victim then continued fighting in an area down the block from the

deli and, as defendant held the victim's leg, another man slashed

the victim's face with a razor blade. The assailants left the

victim bleeding in the street. Eventually, the victim was

transported to the hospital, where he received 80 stitches to

close the wound. As is relevant to this appeal, defendant was

convicted after a jury trial of gang assault in the first degree

and attempted assault in the first degree and was sentenced to

concurrent prison terms of 15 years with five years of

postrelease supervision and 17 years with five years of

postrelease supervision, respectively. Defendant now appeals. 

Upon review of the evidence presented at trial, we find

that the jury's verdict was supported by legally sufficient

evidence and was not contrary to the weight of the evidence (see

People v Bleakley, 69 NY2d 490, 495 [1987]). A conviction for

gang assault in the first degree is supported by proof that "a

person . . ., with intent to cause serious physical injury to

another person and when aided by two or more other persons

actually present, . . . causes serious physical injury to such

person" (Penal Law § 120.07; accord People v Sanchez, 13 NY3d

554, 563 [2009]). Here, Mark Green, who lived in an apartment

near the deli, testified that defendant went to Green's apartment

after the victim stole his money, marihuana and phone, and

summoned Clarence Stanford and Jerod Hemmingway to the apartment

to help him plan his revenge. Hemmingway and Stanford testified

that they went to Green's apartment at defendant's behest with a

razor blade and gun, respectively. For his part, Hemmingway

testified that, in response to taunting from the others, he joked

that a razor blade was all he would need to fight the victim. 

Green testified that they saw the victim arrive at the deli and

that all four men then went downstairs, but that he stayed on the

porch while Stanford, Hemmingway and defendant approached the

victim. According to Green, as the victim tried to fight them
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off, defendant, Stanford and Hemmingway chased the victim down

the street, with Stanford firing the gun at the victim as they

ran after him. According to the victim, Stanford followed him to

the area where defendant caught him and held him as Hemmingway

slashed his face. 

We reject defendant's argument that the People failed to

prove the element that he had been aided by two or more people

actually present. We recognize that the incident started in one

location with defendant and at least three people present, and

that the victim was slashed with the razor blade at a second

location approximately one block away. As to the second

location, there is conflicting evidence with regard to how many

people were present. To conclude that a person was "actually

present" during a gang assault (Penal Law § 120.27), the proof

must demonstrate that he or she was "in the immediate vicinity of

the crime, and [was] capable of rendering immediate assistance to

an individual committing the crime" (People v Sanchez, 13 NY3d at

564; see People v Johnson, 107 AD3d 1161, 1163-1164 [2013], lv

denied 21 NY3d 1075 [2013]; People v Cordato, 85 AD3d 1304, 1312

[2011], lv denied 17 NY3d 815 [2011]). Here, we find that the

evidence was legally sufficient to establish that defendant acted

with the aid of two or more people who were actually present

because, viewing all the evidence in the light most favorable to

the People, we can infer that, at all times, Hemmingway and

Stanford were in the immediate vicinity and able to assist

defendant in the assault. 

Defendant also contends that the People failed to

demonstrate that the victim suffered a serious physical injury, a

defined element of the crime of gang assault in the first degree

(see Penal Law §§ 10.00 [10]; 120.07). Inasmuch as defendant's

trial motions to dismiss did not address this specific issue, his

challenge to the legal sufficiency of the evidence presented in

support of this element is not preserved for our review (see

People v Finger, 95 NY2d 894, 895 [2000]; People v Junior, 119

AD3d 1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]). 

Nevertheless, we evaluate the adequacy of the evidence as to each

element of the crime as part of our weight of the evidence review

(see People v Danielson, 9 NY3d 342, 349 [2007]; People v Junior,

119 AD3d at 1229; People v Johnson, 107 AD3d at 1163 n 2). 
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A "serious . . . disfigurement" qualifies as a serious

physical injury if it is "objectively distressing or

objectionable" (People v Stewart, 18 NY3d 831, 832 [2011]

[internal quotation marks and citation omitted]). This objective

standard requires consideration of the injury "in context,

considering its location on the body and any relevant aspects of

the victim's overall physical appearance" (People v McKinnon, 15

NY3d 311, 315 [2010]). Here, the victim testified that he

received 80 stitches to close the wound across his cheek. 

Although he was reluctant to display his injury to the jury, the

evidence included photographs of the victim's scar. These

photographs, taken at the time of trial, show a significant,

uneven scar running across the victim's cheek from his ear to his

mouth. Although a different verdict would not have been

unreasonable, viewing this evidence in a neutral light (see

People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d at

495; People v Powell, 101 AD3d 1369, 1370 [2012], lv denied 21

NY3d 1019 [2013]), we perceive no error in the jury's

determination that the victim suffered a serious physical injury

(see People v Powell, 101 AD3d at 1370; compare People v

Trombley, 97 AD3d 903, 903 [2012]). 

Finally, although defendant did not preserve his challenge

to the legal sufficiency of the evidence supporting the jury's

verdict on the attempted assault in the first degree charge, he

does contend that the verdict on this count was contrary to the

weight of the evidence. As is relevant here, a conviction for

attempted assault in the first degree must be supported by

evidence that the defendant attempted to cause serious physical

injury to another person by means of a deadly weapon (see Penal

Law §§ 110.00, 120.10 [1]). Here, as it was not defendant who

shot the gun, the charge was based on defendant's accessorial

liability (see Penal Law § 20.00). "A defendant may be held

criminally liable for the conduct of another person when, acting

with the mental culpability required for the commission thereof,

[the defendant] solicits, requests, commands, importunes, or

intentionally aids such person to engage in such conduct" (People

v Fancher, 116 AD3d 1084, 1086 [2014] [internal quotation marks

and citation omitted]). Here, as an acquittal would not have

been unreasonable, we view the evidence in a neutral light and

find that the verdict was not against the weight of the evidence. 
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Our holding in this regard remains even though defendant's

codefendant was acquitted of the charges against him (see Penal

Law § 20.05 [2]; People v Thomas, 5 AD3d 305, 307 [2004], lv

denied 2 NY3d 807 [2004]; People v Gemmill, 146 AD2d 951, 952

[1989]). 

Peters, P.J., Garry and Rose, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court